Excerpt:professional ethics - counsel appearing in a cause--propriety of his giving evidence. - .....sastri, j.1. the plaintiffs pray for the reduction of the maintenance decreed to the defendant in civil suit no. 187 of 1906 from rs. 400 to rs. 100 a month, on the ground that the maintenance decreed in that suit was in respect of the defendant and her daughter and that, owing to her daughter having been married, her maintenance was no longer obligatory on the defendant. the plaintiffs also pay that the decree in civil suit no. 187 of 1906 may be rectified by declaring that the amount decreed in that suit was really, for the maintenance of the defendant and her daughter and that the amount be reduced to rs. 100 or such other sum as the court may think proper.2. the case for the plaintiffs is stated defendant, who is the step-mother of the 1st plaintiff, filed civil suit no. 56 of 1906.....

Judgment:

Kumaraswami Sastri, J.

1. The plaintiffs pray for the reduction of the maintenance decreed to the defendant in Civil Suit No. 187 of 1906 from Rs. 400 to Rs. 100 a month, on the ground that the maintenance decreed in that suit was in respect of the defendant and her daughter and that, owing to her daughter having been married, her maintenance was no longer obligatory on the defendant. The plaintiffs also pay that the decree in Civil Suit No. 187 of 1906 may be rectified by declaring that the amount decreed in that suit was really, for the maintenance of the defendant and her daughter and that the amount be reduced to Rs. 100 or such other sum as the Court may think proper.

2. The case for the plaintiffs is stated defendant, who is the step-mother of the 1st plaintiff, filed Civil Suit No. 56 of 1906 in the High Court claiming inter alia maintenance for herself and her daughter, that the said suit was permitted to be withdrawn with liberty to file a fresh suit, as it was found that the suit was bad for misjoinder of parties and causes of action that she brought Civil Suits Nos. 187 of 1906 and 188 of 1906 claiming maintenance for herself and her daughter respectively, that the suits were heard together and compromised, the terms being that the plaintiff and her daughter should get Rs. 400 a month for their maintenance, that a decree was passed in Civil Suit No. 187 of 1906 awarding Rs. 400 for maintenance but that, by reason of some mistake, the decree, instead of stating that the maintenance was to be for the defendant and her daughter, simply states that the maintenance was to be for the defendant, that defendant's daughter was married in October 1913 and has attained puberty and gone to live with her husband and that, by reason of this fact, he has no longer to pay Rs. 400 a month but only Rs. 100.

3. The defendant filed a written statement, denying that the sum of Rs. 400 was the maintenance payable to her and her daughter and stating that the terms of the compromise are correctly set out in the decrees passed in Civil Suits Nos. 187 and 18 of 1906. She states that, although she claimed a much larger sum, Rs. 400 was, by consent of the parties, fixed for her maintenance, that her daughter was then of marriageable age, and that her maintenance was not taken into consideration when the settlement was arrived at. She also states that an application to amend the decree was made before Sir Arnold White but that it was refused, the Chief Justice holding that he had no power to vary his decree and that, even if he had, he would not do so on the merits. The defendant denies that the plaintiffs have any cause of action and states that the matter is res judicata and that the plaintiffs are not entitled to any relief. A preliminary issue was settled as to whether the plaintiffs are entitled to vary the terms of the razinama decree in Civil Suit No. 187 of 1906. For the reasons given in my judgment dated 8th December 1914, 1 held that the plaint disclosed a cause of action and that, on the allegations contained in the plaint, the plaintiffs were entitled to sue. I also held that the suit was not barred by res judicata. The following additional issues were then settled:

4. (a) Was it agreed that the maintenance of Rs. 400 should be paid to the defendant and her daughter as alleged in paragraph 6 of the plaint?

5. (b) If the 1st issue is found in plaintiffs' favour, are they entitled to any reduction in the maintenance allowed by the decree, and, if so, by what amount?

6. (c) Is the claim of the plaintiff for the rectification of the decree barred by limitation?

7. The two Suits Nos. 187 and 188 of 1906 came on for hearing before Sip Arnold White and, after they were part-heard, a compromise was suggested and the terms of the compromise were admittedly settled in his Lordship's Chambers.

8. The only evidence adduced before me to show that there was any mistake when the compromise decrees in Civil Suits Nos. 187 and 188 of 1906 were entered into, is the evidence of the plaintiff and of Mr. Narasimhachari, the junior Vakil who was present in the Chambers of Sir Arnold White. I may dismiss the evidence of the plaintiff as that of a person who is interested and whose attitude towards his step-mother has been throughout bitterly hostile. He set up the false plea that he was not personally liable and that the decree was wrong in that respect also, and the proceedings after the decree in Civil Suits Nos. 187 and 188 of 1906 show that he left no stone unturned to prevent the plaintiffs therein from realizing the fruits of their decrees. Mr. Narasimhachari, who was present when the compromise was entered into, admits in cross-examination that nobody expressly stated that the maintenance was to be for both the plaintiff and her daughter and that he does not remember if the daughter's name was mentioned. In answer to a question put by me, he stated that he understood that the arrangement was that Govindoss (1st plaintiff herein) should pay Rs. 400 to the defendant and that she should maintain her daughter, there being no arrangement as to how much should be paid for the daughter's maintenance. He winds up by saying that he cannot say what was understood by all the parties as regards the question of maintenance. All that this witness can state is that he was under the impression that the maintenance of Rs. 400 was to be for the plaintiff and her daughter, but how he came to be under that impression the evidence does not show. As against the evidence of the plaintiff and Mr. Narasimhachari, there is the evidence of Mr. Venkatasubba Row, who appeared for the plaintiff in Civil Suit No. 187 of 1906. He gave his evidence in a straightforward manner and I have no hesitation in accepting his evidence as to what took place in the Chambers of the late Chief Justice.

9. Objection was taken to Mr. Venkatasubba Row giving evidences as he was one of the Vakils who appeared for the defendant. I cannot help remarking that the objection comes with very bad grace from the plaintiffs. At the settlement of issues, the plaintiffs were ordered to file a written statement before 16th December 1914 giving full particulars as to the date of the agreement mentioned in the first issue, the parties that were present at the time of the agreement and the parties between whom the agreement was come to. The plaintiffs did not file the particulars and their only excuse was that their Vakil forgot to do so. Though the plaintiffs would have only themselves to thank if the first issue was decided against them and the suit dismissed, I did not want to dismiss the suit, nor did Mr. Venkatasubba Row press for it as the non-filing of the particulars was due to an oversight of the plaintiff's Vakil. When the evidence was gone into, it was alleged that the compromise was in the Chambers of the late Chief Justice and names of the parties present were given. As soon as the plaintiff's evidence was over Mr. Venkatasubba Row withdrew from the case and it was conducted by Mr. Radhakrishnayya. Under these circumstances I do not see what objection there could be to Mr. Venkatasubba Row giving evidence in this suit. Though it is no doubt desirable that Counsel ought not to appear in a case where it is probable that his evidence would be material, I do not think that there is any inflexible rule that his evidence ought not to be taken, if, at any usage of the suit, it becomes necessary to do so. To lay down such a hard and fast rule would often defeat the ends of justice. I have no hesitation an holding that the evidence of the 1st plaintiff and Mr. Narasimhachari is utterly insufficient to show that there was any mistake in the terms as embodied in the decree in Civil Suits Nos. 187 and 188 of 1906.

10. I find on this issue that there was no mistake in the matter and that the real agreement at the time of the compromise was that Rs. 400 should be paid to the defendant, and not to the defendant and her daughter.